Hi I'm Philip Newey, author and editor. Here are some thoughts, ideas and other nonsense. I may, at times, express some views that offend some readers. I make no apologies for that. Read on at your own risk. Be sure to also visit my writer's page: http://philipnewey.com. I also run a manuscript services business called All-read-E: http://philipnewey.com/All-read-E.htm

Thursday, September 4, 2014

The Rule of Law

In Australia, we talk
proudly of living under ‘the rule of law’, praise other countries for doing so,
and condemn others for not doing so. So what is this ‘rule of law’?

The rule of law is the
legal principle that decisions within a nation should be determined according
to laws, statutes and legislation, rather than according to the whims of
individual members of the government. All well and good. There are, however, a
couple of issues that we need to keep in mind when extolling the virtues of the
rule of law.

First of all, most
politicians, when they use the term, have in mind a fairly specific approach to
law: a western, democratic view of law, which takes into consideration such
things as ‘universal’ human rights. The fact that a nation lives under the rule
of law is not, in itself, any moral vindication of that country. Our Australian
leaders would not, for example, regard very highly a nation living under Sharia
Law. Australian leaders would (perhaps with justification) criticise a nation
whose laws ignored the rights of minorities. These nations may be living under
the rule of law, but they are not laws that we
regard very highly.

The point is that ‘law’
is not the final arbiter here. There is something above and beyond law which
(we seem to believe) gives us the right to pronounce a law good or bad. Law can
also be used to strip people of rights which we might otherwise regard as
fundamental. Among these are laws regarding national security.

Like many nations,
since 2001 Australia has made, and continues to make, changes to laws
concerning national security. These often give additional powers to police and
to security agencies. It is always difficult to argue against these laws, and
anyone who does so is accused of not taking seriously the threat to national
security, or of being a ‘bleeding heart liberal’. The odd thing about these
laws is that they often gain the most support from those who talk loudest about
individual liberty and small government. The problem is that these laws
sometimes involve the sacrifice of certain freedoms and rights. Of course, compromise
is always necessary in society. These laws could also be used in situations for
which they were not originally intended; but, by and large, we in the West seem
to trust our governments, police and security forces not to abuse them. Perhaps
we are a little naïve.

There are laws in
place since 2010 in Australia which include in the definition of national
security any serious threat to Australia’s borders or national integrity. This
sounds fair enough. Clearly an ‘invasion’ is a threat to national security.
Recently, however, ASIO (Australia’s main security agency) identified an
Australian citizen, currently living overseas, as a ‘people smuggler’. The 2010
legislation was used to revoke this person’s passport. Now, I don’t know if
this person is a people smuggler or not, but two things concern me about this
decision.

First, is people
smuggling really a matter of national security? It is a crime, certainly. But
does it involve national security? A grey area at best.

Second, by invoking
this law, the government is, in fact, able to undermine the ‘rule of law’. If
this person is a people smuggler he [or she] can be charged with a crime and
extradition procedures can begin. The person can face trial. He or she can
defend themselves against the charges—which would seem to be a fundamental
right under our particular rule of law—and justice can be done, and be seen to
be done.

Invoking national
security legislation bypasses the rule of law (while using law to do so). It’s
also probably quicker, easier and cheaper.

I am not here to
defend an alleged people smuggler. But I am here to uphold their right under the rule of law to have the
opportunity to defend themselves against charges, properly presented before a
court of law.

We need to be very
wary of this slippery slope. And we are very foolish if we think there are not
those within our society who will use such laws for their own ends, and to
undermine the very rule of law of which they claim to be so proud.

2 comments:

And International Law - I don't understand how we are signatories to UN conventions eg refugees and ignore them eg Israel etc etc Can only hope there are professionals like Julian Burnside who can shine a light into the politicians hypocracy.